Substantive Law Study Support

Questions for Analysis and Responses

1. In both Griswold and Roe v. Wade, the Supreme Court talks about a “penumbra of rights.” What does this mean, and why is it important?
The penumbra of rights refers to the fact that enumerated rights in the Constitution often include several related and unstated rights. Hence, the right to liberty includes the right of personal choice in many matters. This is often the basis of privacy cases.

2. Answer the following regarding Skinner v. Oklahoma.

a. Were the defendant’s procedural due process rights violated? Explain.

No. The Court used an equal protection approach in the case because the case involved one group of repeat offenders versus another. It would have been a due process case if the Act had stated that all repeat felons were to be treated the same.
b. Did the Court outlaw forced sterilization in all circumstances? Explain.

No, the Court ruling only ended punitive sterilizations, not compulsory sterilization.

3. The Court in Lawrence v. Texas held that the Texas law criminalizing homosexual conduct violated the Due Process Clause. Was the Court referring to substantive due process or procedural due process? Explain.
The Court was referring to substantive due process as they were dealing with a liberty-based due process challenge. The Court majority held that intimate consensual sexual conduct between adults was part of the liberty protected under the Fourteenth Amendment Due Process Clause.

4. Review the hypothetical case in Living with the Constitution. Do you think Reily has a constitutional right to marry while in prison? Why or why not?
This question calls for opinion. Students should discuss the right to marry and procreate compared to the interest of the state in punishing criminal conduct.

Assignments and Projects

1. Brief the case of Roe v. Wade using the format from previous chapters.

Roe v. Wade, 410 U.S. 113 (1973)

Judicial History: The trial court found for Roe, but refused to grant an injunction. Roe appealed. The appellate court affirmed, and Roe was appealed.
Facts: The appellant, Roe, was pregnant and wished to obtain an abortion. Texas law made abortions illegal, except for those performed to save the life of the mother. Roe sued under the claim that the Texas law was an unconstitutional violation of her right to privacy under the Fourteenth Amendment. Roe sought an injunction to prevent the defendant, Dallas County District Attorney Wade, from enforcing the statute.
Issue: Does the Texas statute criminalizing abortion violate the appellant’s rights under the Fourteenth Amendment’s Due Process Clause?
Holding: Yes. The right to personal privacy includes the right to have an abortion, but the right is not unqualified and must be considered against state interests in regulation.
Rationale: The Court found that the Texas abortion statute forbid all abortions except in the case of a life-saving procedure on behalf of the mother is unconstitutional upon the right to privacy.

2. Justice Brennan wrote the Carey decision. He stated: “‘Compelling’ is of course the key word; where a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.” Justice
Brennan drew the distinction between a “significant state interest” and a “compelling state interest.” Read the full case, and explain the difference between these two types of state interests.
A “significant state interest” is considered “less rigorous” than the “compelling state interest.” It is a sweeping term for any matter of public concern that is addressed by government in a law or policy.
A “compelling state interest” standard has a direct and substantial interference with constitutionally protected rights.

3. Read the selection from the brief of one of the petitions in Gonzales v. Carhart found in Appendix G. Summarize the argument.
Student answers will vary, but their summaries should contain the following information from the brief:
- The argument regarding whether the absence of a health exception renders the Act invalid.
- The argument regarding whether a partial-birth abortion statute imposes an undue burden on a woman’s access to an abortion.
- The argument that the Act is constitutional under the Stenberg decision.